Flack v. Knox Cnty., 3:15-cv-522-PLR-HBG

• Decision Date: 24 January 2017
• Docket Number: No. 3:15-cv-522-PLR-HBG,3:15-cv-522-PLR-HBG
• Parties: LOUIS W. FLACK, Plaintiff, v. KNOX COUNTY, TENNESSEE, et al., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

LOUIS W. FLACK, Plaintiff,
v.
KNOX COUNTY, TENNESSEE, et al., Defendants.

No. 3:15-cv-522-PLR-HBG

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE

January 24, 2017

REPORT AND RECOMMENDATION

This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

Now before the Court is the Plaintiff's Motion for Attorney's Fees and Reimbursement of Reasonable Expenses [Doc. 49]. The Defendant filed a Response [Doc. 58], objecting to the Plaintiff's Motion, and the Plaintiff filed a Reply. [Doc. 61]. The Court also permitted supplemental filings [Docs. 64, 65] by the Defendant and the Plaintiff, respectively. The Defendant also filed a Supplemental Brief [Doc. 67], which the Court has considered. The Court finds that a hearing on the Motion is not necessary and that the Motion is ripe for adjudication.

For the reasons more fully explained below, the Court RECOMMENDS that the Motion for Attorney's Fees be GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

The Complaint [Doc. 1] in this case was filed on November 23, 2015. The Complaint alleged that the Plaintiff, a mentally-ill man suffering from paranoid schizophrenia psychotic episode, was arrested and entrusted to the custody of Knox County Sheriff's Department ("KCSD"). The Complaint states that while the Plaintiff was in the care of KCSD, he was brutally

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assaulted and beaten by no fewer than five Corrections Officers or Deputies. The Complaint alleged that from November 2014 and forward, the Defendants attempted to conceal facts from the Plaintiff, his attorney, and the public in an effort to cover-up the facts surrounding the incident. The Plaintiff alleged that the Defendants violated 42 U.S.C. §§ 1983, 1985, 1986, 1988, 12101 and Tennessee Code Annotated § 8-8-301 and § 29-20-101. In addition, the Plaintiff alleged outrageous conduct and intentional infliction of emotional distress.

On February 2, 2016, the District Judge ordered the parties to a judicially-hosted mediation before United States Magistrate Judge C. Clifford Shirley, Jr. On March 28, 2016, Judge Shirley reported [Doc. 27] that the case had settled at mediation. Later, however, the parties could not agree on the specific settlement terms, and Judge Shirley conducted a status conference on June 30, 2016. After the status conference, the parties submitted a Stipulation of Dismissal [Doc. 38] on July 7, 2016, noting that all claims had been settled and that the only remaining issue to be adjudicated by the Court was attorney's fees. The parties settled the case for $200,000.00.

The Plaintiff has now moved for an award of attorney's fees.

II. POSITIONS OF THE PARTIES

The Plaintiff originally requested attorney's fees in the total amount of $114,600.00, expenses in the amount of $4,185.94, and post judgment interest. In the alternative, the Plaintiff requests attorney's fees in the amount of $100,000.00, which is "based upon one-third contingent fee contract." [Doc. 49 at 8]. The Plaintiff submits that counsel devoted no less than 454 hours to the litigation at hourly rates as follows:

Don Daugherty, paralegal	$140.00
Lance Baker, counsel	$175.00
Christopher Cain, counsel	$275.00
Thomas Jessee, counsel	$275.00

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The Plaintiff argues that an initial lodestar calculation of these fees is $76,400.00. The Plaintiff submits, however, that given the excellent result achieved and other factors warranting an enhancement, a 1.5 (50%) enhancement of the lodestar is appropriate. The Plaintiff submits that the hourly rates charged in this case were reasonable and consistent with the market rates for attorneys and staff of comparable experience in Knoxville. In addition, the Plaintiff asserts that the hours expended in this case were reasonable and that counsel was able to obtain a $200,000.00 settlement. The Plaintiff states that 220 hours were devoted to work performed during the ten months preceding the filing of the Complaint, 88 hours were devoted to developing and serving the 53-page Complaint, 63 hours were devoted to research and drafting motions and responses, 65 hours were devoted to mediation, and 45 hours were devoted to fee-related matters. The Plaintiff states that although this case settled prior to trial, it took a substantial amount of time and work and presented difficult issues. The Plaintiff submits that counsel exercised billing discretion by excluding billable work from the fee request that was deemed redundant, duplicative, or unnecessary to the successful prosecution of the case. The Plaintiff also states that he does not seek compensation for work performed by certain attorneys and legal staff who may have had minimal involvement. In addition, the Plaintiff submits that counsel excluded 49.65 hours of attorney and paralegal/assistant work from the fee request in an exercise of billing discretion.

The Plaintiff argues that a reduction in hours is not warranted. He states that counsel's time billed for communicating with local media served to mitigate the Law Director's actions to a certain degree. Further, the Plaintiff states that the Court should enhance the lodestar amount for obtaining an exceptional result under extraordinary circumstances. The Plaintiff emphasizes that his recovery was almost seven times more than his incurred medical expenses.

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In the alternative, the Plaintiff requests that the Court award $100,000.00 in attorney's fees. The Plaintiff reasons that he "recovered the net sum of $200,000, exclusive of attorney's fees. That net result and payment to Plaintiff is the economic equivalent of a gross recovery of $300,000, which a resulting payment of $200,000 to Plaintiff and a payment of one-third, or $100,000 to Plaintiff's counsel." [Doc. 50 at 25]. Finally, in support of the Motion, the Plaintiff has filed the Declaration of Lance Baker [Doc. 49-1], the Declaration of Christopher Todd Cain [Doc. 49-2], the Declaration of Thomas C. Jessee [Doc. 49-3], and the Declaration of John A. Lucas [Doc. 49-4].

In Response [Doc. 56], the Defendant filed a Notice of Filing the following documents: (1) Spreadsheet summary of time billed by Mr. Baker and Mr. Daugherty; (2) December 15, 2015 Rule 68 Offer of Judgment; (3) March 11, 2016 Rule 68 Offer of Judgment; (4) Criminal Felony Docket; and the (5) Berger Fee Claim Analysis. In addition, the Defendant filed a Response in Opposition to Plaintiff's Application for Fees and Expenses [Doc. 58]. The Defendant's Response relies upon the Declaration of David Wigler, counsel for Defendant Knox County. [Doc. 58-1].

Mr. Wigler's Declaration states that in his opinion, the fee claim is unreasonable and excessive and that a reasonable fee claim would not exceed $27,000.00. Mr. Wigler emphasizes that the case was filed on November 23, 2015, and settled less than four months later on March 11, 2016. Mr. Wigler states that no dispositive motions were filed or litigated and that only one Defendant filed an Answer to the Complaint. In addition, Mr. Wigler states that Defendant Knox County never denied liability, but instead, Mr. Wigler served Plaintiff's counsel with an Offer of Judgment. After mediation, Mr. Wigler sent Plaintiff's counsel an Offer of Judgment with respect to attorney's fees.

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Mr. Wigler asserts that it was reasonable for Attorney Baker to enlist some help since he has only been practicing law for nine months when he undertook representation. Mr. Wigler, however, submits that Attorney Baker did not enlist individuals with experience in civil rights litigation. Mr. Wigler states that it was unreasonable to have three attorneys and one paralegal with a Juris Doctorate bill in this matter. Mr. Wigler asserts that Attorney Baker's hourly rate is not "unreasonable per se," but it is unreasonable for Attorney Baker to double and triple bill for conferences with other attorneys. Moreover, Mr. Wigler states that while Attorney Baker claims he exercised billing discretion by excluding billable work, he deleted the billing entries and the Court cannot decide whether any meaningful billing discretion occurred.

Further, Mr. Wigler states that with respect to Attorney Cain's and Attorney Jessee's rates, $275.00 is a reasonable rate for attorneys with prior experience in this field. Mr. Wigler argues, however, that there is no evidence of their prior experience in this field in the record. In addition, Mr. Wigler states that Attorney Cain's and Attorney Jessee's time billed prior to November 23, 2015, should be stricken because Attorney Baker asserted that he engaged with Attorney Cain and Attorney Jessee after filing the Complaint. Mr. Wigler also alleges several erroneous and unreasonable entries with respect to Attorney Cain's and Attorney Jessee's timesheets. Further, Mr. Wigler states that Attorney Baker doubled billed in this case. Specifically, Mr. Wigler states that Attorney Baker billed time in the federal lawsuit and in the state criminal court case. Finally, with respect to Mr. Daugherty, Mr. Wigler asserts that $140.00 is unreasonable for a paralegal.

Mr. Wigler also argues that the hours billed in this case were excessive. Mr. Wigler submits that the Court should award the Plaintiff $27,000.00 as a reasonable attorney's fee since that amount does not exceed the amount available from the Offer of Judgment after allowable costs. With respect to Attorney Baker's request for post-settlement fees, Mr. Wigler states that the parties

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continued to communicate about the settlement paperwork but that Attorney Baker would not articulate what changes he insisted on making to the release.

The Plaintiff filed a Reply [Doc. 61] repeating that he seeks an award of $114,600.00, based on a lodestar amount of $76,400.00. The Plaintiff states that in the alternative, an award of $100,000.00, representing a contingency fee of one-third of the total recovery, should be awarded. With respect to the Plaintiff's requests...